Nashua warehouse company wants review of Liquor Commission ruling

By DAVE SOLOMONNew Hampshire Union LeaderJanuary 18. 2013 12:31AMCONCORD - Attorneys for Law Warehouses of Nashua asked a Superior Court judge to reconsider his ruling against the company's right-to-know petition aimed at finding out why Law lost its bid for a $200 million contract with the New Hampshire Liquor Commission (NHLC) to an Ohio-based company.

A contract between Law and the NHLC for warehousing services had been regularly renewed since the 1990s, but last year the commission decided to seek bids for a long-term deal. In November it awarded a 20-year contract to Exel Inc., a subsidiary of the German company Deutsche Post DHL.

A spokesman for Exel said Thursday that the company is moving forward with plans to start business in New Hampshire and has identified a site along 3A in Bow for construction of a 240,000-square-foot warehouse.

"We are working with a local New Hampshire firm for the design-build portion of the site, and when we get to the point where we are close enough to the start-up to begin hiring people we will do that," said Exel spokesperson Lynn Anderson. "We expect to hire 50 people who will be locally sourced in the Bow area."

Brian Law, president of Law Warehouses, said 100 jobs are at stake in facilities it currently owns in Nashua. He said the company had planned to acquire a former Poland Springs plant near Interstate 95 in Seabrook, which he described as ideal for the purpose, had it been awarded the contract.

Law has demanded to see the full contract between the state and Exel, with no material blacked out or redacted, as well as the scoring sheet used in the commission's decision-making process, emails and other communication considered part of the contract.

The court ruled on Jan. 8 that the Liquor Commission was allowed to black out certain information, even after the contract was approved by the state and became a public document.

In a motion for reconsideration filed Tuesday, Law's attorneys say they it should at least get to review a list of what has been withheld, and be given a chance to challenge those redactions with a judge.

Attorney Chris Carter, representing Law, said the material the company has seen has only raised more questions.

"We believe that the documents that have been un-redacted and produced as a result of our right-to-know petition confirm our concern that New Hampshire law governing this bidding process was not followed and that the commission demonstrated improper favoritism for Exel," Carter said.

Question of collusion

In his motion for reconsideration, Carter attached a letter from Exel to the Liquor Commission, in which Exel's "real estate solution" is blacked out. The letter was later released with the paragraph intact, and it reads as follows: "It appears Law Warehouses is attempting to tie up the best existing warehouse location in New Hampshire through a deal with the current sub-tenant and landlords.

"Though not willing to accept our calls now, we believe the sub-tenant and landlord will work with Exel if we are selected as the successful proponent. If this is not the case, Exel has found a build to suit option in Concord. The net cost difference between the two buildings is minimal. Thus, either way we have a real estate solution for the NHSLC."

Carter's point is that the information was clearly not proprietary and was initially withheld at Exel's request, suggesting collusion.

Attorney Nick Holmes of Manchester, representing Exel, said that is simply not the case. "The initial round of redactions was done by someone at Exel who did not fully understand the statute," he said. Since then, Holmes and attorneys for the state representing the Liquor Commission have reviewed all the blacked-out material to make sure the redactions can be defended in court.

He said that process is complete and the documents have been posted on the Liquor Commission website, except for two fully redacted documents that relate to the real estate transaction in Bow and portions of 13 others that he said contain confidential, commercial or financial information that is exempt.

Assistant Attorney General Lisa English, who is representing the Liquor Commission, said her office is willing to provide a Vaughn index and expects to have one ready by next week. The deadline for formal protests to the bid award has been extended to Jan. 28.

Another unsuccessful bidder, XTL Logistics and Transportation, has also filed right-to-know requests in the case through its attorney, James Bianco of Concord. The Canadian company with U.S. headquarters in Pennsylvania placed second in the NHLC's scoring sheet. Law Warehouses placed third.

Anderson said her company won the contract on the merits of its proposal, and is eager to get to work.

"Our calling card is our expertise and experience," she said. "We think our ability to use that experience to form a very efficient and very productive process is what earned us this business."